Patrick Cavanaugh [“Cavanaugh”] and Melanie Smith [“Smith”] met when both were graduate students at the University of Rochester. After graduating in 2005, they moved to different states, but continued to maintain contact.
In 2007, Cavanaugh sought a personal protection order (PPO) against Smith. His petition alleged:
- she was sending threatening emails
- she appeared unexpectedly at Cavanaugh’s football camp
- she had made statements to Cavanaugh’s employer and others in the community regarding Cavanaugh’s personal relationship with his wife and Smith’s belief that Cavanaugh was immoral and dishonest.
Following a hearing, the trial court granted Cavanaugh’s request for a PPO that prohibits Smith from stalking Cavanaugh and from “writing or communicating slanderous statements with Cavanaugh’s employer, community, & associates.”
The court of appeals affirmed. The opinion in Cavanaugh v Smith is worth reading for its discussion of stalking in the form of email communications, phone calls, etc. and threats of future actions. If you’re a member of the public - especially one who has been pestered by someone after you’ve made it clear that you wish to have no contact with that person or if you're a family lawyer advising clients, this case contains important information.
The court didn’t just order Smith to stop contacting Cavanaugh. The Court told Smith to stop sending communications to Cavanaugh's wife and others. The court said to Smith at the hearing that Smith was “obsessed” with Cavanaugh even though Cavanaugh had not done anything that would lead her to believe he was interested in continuing to communicate with her. In addition, the court explained:
"And you have taken that obsession to the point of crossing the line between what is acceptable behavior and what is unacceptable behavior. You have gone from just communicating with him to slandering his name and libeling his name in public. You’ve done it on this record, you’ve done it in writing to his employer, to various officials. He communicated with you to stop and desist, do not bother him anymore, and you continue to do that.
"And it was after he basically flat out told you, don’t bother me anymore, that you really stepped up your campaign. That’s when you really got vicious."
The trial court prohibited Smith from “writing or communicating slanderous statements with Cavanaugh’s employer, community, & associates.” This is what First Amendment lawyers would call a “prior restraint.”
The court of appeals addressed the constitutional issue as follows:
"In addition, however, the trial court found that Smith had also “gone from just communicating with him to slandering his name and libeling his name in public.” Accordingly, in addition to enjoining Smith from stalking Cavanaugh, the court also enjoined her from 'writing or communicating slanderous statements with Cavanaugh’s employer, community, & associates.' Speech that is slanderous is not constitutionally protected, nor does it serve a legitimate purpose. Thus, the trial court neither issued the PPO on the basis of, nor improperly enjoined, activity that was constitutionally protected or conduct that served a legitimate purpose.
"Similarly, because the PPO only enjoins Smith from making 'slanderous statements' about Cavanaugh within the community, and slanderous statements are not constitutionally protected, it does not constitute an improper prior restraint on speech. Van Buren Charter Twp v Garter Belt, Inc, 258 Mich App 594, 622-623; 673 NW2d 111(2003).
This case is somewhat similar to the Krasnansky case that I wrote about on January 12, 2008. Divorce Wars | Blogs, free speech and getting even. In that article I wrote about one man’s publication of private, embarrassing facts and sections of his wife’s diaries on a public blog. A Vermont court issued an ex parte restraining order and ordered him to remove from the blog anything that concerned his marriage. He refused, stating that he had a First Amendment right of freedom of speech.
Click image to enlarge.
In this January 12th article, I wrote extensively about the First Amendment and cited to the New York Times article. That’s when I became the stalkee.
Mr. Krasnansky called me at my home in the early evening on the same day my blog appeared. He wanted to tell me his side of the story. I told him that I was not interested in hearing his side of the story and that I thought that his outrageous publication of his wife’s personal diaries was just another form of domestic violence. I told him that I would not lend him my blog as a forum for his personal vendetta. I hung up. He called back. Thank goodness for caller ID.
Now I was angry. I sat down and wrote another blog article. Divorce Wars & Invasion of Privacy (January 13, 2008) I might add that it took me many hours to do the research and writing, but I was a woman with a mission!
I discussed the First Amendment. I’m a huge defender of free speech. Thus prior restraints are not favored by me. But the statements Krasnansky published apparently were not slanderous or libelous – or if they were, truth was a defense, since he was quoting his wife’s own journals.
I also said that anyone can say whatever he wants as long as he’s willing to pay to say it. This blog article explored in depth the possible causes of action for invasion of privacy and discussed the four possible tort claims that Krasnansky’s wife and others might have. Oh, before I forget to mention it. I sent Krasnansky's wife's lawyer a copy of the blog post on January 13, 2008.
The Vermont court then, on January 14, 2008, vacated its restraining order, citing First Amendment issues. Shortly thereafter, I took distinct pleasure in seeing diminished content on Krasnansky’s blog. (All of the personal information about his wife and marriage disappeared). I hope that Krasnansky's wife's attorney was using the invasion of privacy research I'd sent to her. Sometime in December 2008 or January 2009, I noted that, in fact, his blog is absolutely devoid of verbal content. I hope that my efforts were, in some small way, partially responsible for this - that the opening up of the tort claim window for his wife may have been a reason why Krasnansky stopped his highly visible Internet attack on her.
Lay persons and lawyers will benefit from the court of appeals panel's careful explanation of the type of communications that might be restrained by a PPO. The issue of First Amendment rights is worth consideration. So, too, is the possibility that tort liability may attach to certain forms of communication.
That’s my two cents worth. What do you think?